Help contrib parent visa refused!

[Guest Mitchell]

Hiya all

 

My parents applied over a year ago for the contributory parent permanent visa and it has just been refused. Our reading of the the rules, confirmed by the office in Perth was that one child must have pr or citizenship and all children in Oz must be settled and intend to stay permanently. My sister has citizenship and has been here for approx 8 years. She is married to an Aussie and has a 5 year old son. I have been here 18 months and am currently on a 4 year 457 waiting for my 2 years and 1 day anniversary to apply for pr. I have a perm job, a car loan and have just signed my 2nd 12 month lease for my house. We have now been told that I need PR too and my parents visas refused and they loose the money. Can anyone help or confirm which facts are correct? Is it worth an appeal or will we just be wasting our time? Is there anything else we can do or are we going to have to wait and start all over again. Or consider other options?

 

Anyone out there able to help?

Thanks Michelle

[Gollywobbler]

Hiya all

 

My parents applied over a year ago for the contributory parent permanent visa and it has just been refused. Our reading of the the rules, confirmed by the office in Perth was that one child must have pr or citizenship and all children in Oz must be settled and intend to stay permanently. My sister has citizenship and has been here for approx 8 years. She is married to an Aussie and has a 5 year old son. I have been here 18 months and am currently on a 4 year 457 waiting for my 2 years and 1 day anniversary to apply for pr. I have a perm job, a car loan and have just signed my 2nd 12 month lease for my house. We have now been told that I need PR too and my parents visas refused and they loose the money. Can anyone help or confirm which facts are correct? Is it worth an appeal or will we just be wasting our time? Is there anything else we can do or are we going to have to wait and start all over again. Or consider other options?

 

Anyone out there able to help?

Thanks Michelle

 

Hi Michelle

 

How many children do your Parents have between them, including children by earlier or later relationships, and where do all the children live, please?

 

http://www.immi.gov.au/media/fact-sheets/39contributory_parent.htm#g

 

50% of the total number of children need to have PR or Citizenship in Australia. A sc 457 visa does not confer PR but that wouldn't upset the Balance of Family Test if the only children are yourself and your sister.

 

So if it is not a BoF Test problem, which of the children sponsored your Parents for their CPV? Did you try to act as the Sponsor or did your Aussie Citizen sister do that?

 

If you have two siblings but only one of them is a PR/Citizen then the BoF Test is not met at the moment and it wil not be met unless one of the remaining two siblings becomes a Permanent Resident.

 

The Parents Visa Centre do make the occasional mistake but they only do so very rarely. If they have made a mistake then it is usually possible to get them to "vacate the visa refusal" (the technical term) and to correct their own error because if the PVC has made a mistake, the Migration Review Tribunal would correct it on appeal to the MRT.

 

So for the moment, I am assuming that the PVC has not made what would be a very elementary mistake and that either there is a problem with the BoF Test or that the "wrong" child has tried to Sponsor the CPV application?

 

Please let me know.

 

Cheers

 

Gill

Edited April 3, 2012 by Gollywobbler
typos

[Guest Mitchell]

Hi Michelle

 

How many children do your Parents have between them, including children by earlier or later relationships, and where do all the children live, please?

 

http://www.immi.gov.au/media/fact-sheets/39contributory_parent.htm#g

 

50% of the total number of children need to have PR or Citizenship in Australia. A sc 457 visa does not confer PR but that wouldn't upset the Balance of Family Test if the only children are yourself and your sister.

 

So if it is not a BoF Test problem, which of the children sponsored your Parents for their CPV? Did you try to act as the Sponsor or did your Aussie Citizen sister do that?

 

If you have two siblings but only one of them is a PR/Citizen then the BoF Test is not met at the moment and it wil not be met unless one of the remaining two siblings becomes a Permanent Resident.

 

The Parents Visa Centre do make the occasional mistake but they only do so very rarely. If they have made a mistake then it is usually possible to get them to "vacate the visa refusal" (the technical term) and to correct their own error because if the PVC has made a mistake, the Migration Review Tribunal would correct it on appeal to the MRT.

 

So for the moment, I am assuming that the PVC has not made what would be a very elementary mistake and that either there is a problem with the BoF Test or that the "wrong" child has tried to Sponsor the CPV application?

 

Please let me know.

 

Cheers

 

Gill

 

Hi Gill

 

Thanks for the reply. There are 3 children total, one is still in the uk and would never emigrate. So 2 of 3 are here. So that looks like the BOF is not met if I'm only on a 457. We were going to wait till I got PR for my parents to apply and I started doing the application for skilled migrant PR when I got here to try and speed things up. But then my sister in Perth spoke to the PVC there and they said as she had citizenship, and she sponsored my parents it would be fine to apply straight away as I only needed to be permanent with a small P. They said I just needed to prove I was settled and in a permanent job, have a car loan and a long lease would be sufficient. I therefore stopped doing the skilled migrant visa and have just been waiting for the 2 years and 1day time limit to apply for PR. if we'd known the advice was wrong I would have got the skilled visa by now. As it stands I'm not sure it's going to be quicker to wait till September when I can apply anyway.

 

As the PVC gave us wrong advice, is there anyway to at least get the lost fees refunded? I'm assuming from your reply there's nothing we can do on appeal.

 

My parents are now looking at selling up and spending 12 months at a time here on a tourist visa until they can apply and get their permanent visa. I've told Mum to hold off doing anything drastic for a bit as I don't want them to get it wrong and waste time and money again. Mum is desperate to get here ASAP as she's already 72 (Dad is only 66) and feels she's missing out on my nephew growing up.

 

Thanks

Michelle

[Thorpe1]

Hi Michelle,

 

I'm so sorry you have been misinformed. I know that every time we called the Immigration office we were told something different.

 

Just a word of advice tho in relation to your parents and the 'tourist visa'. It is just that a 'tourist visa' and DIAC are VERY strict about granting more than one visa, especially for a 12 month period. My mum was back and forward, over a 3 year period whilst waiting to get to the appropriate aged for the APV. On the last occasion DIAC threatened to impose an 8503 restriction. This means that she could not have applied for any sort of permenant visa while this restriction was in place. What they dont want to see is it looking like people are 'using a tourist visa to reside in Australia". I dont know how many times you would need to apply for a tourist visa for your parents but they would probably have to return to the UK for a period of 3-6 months after the first 12 months before DIAC would consider a further tourist visa.

 

Hope that helps

 

 

Karen

 

I think Gill (Gollywobbler) will confirm that this is dangerous territory.

 

 

 

Hi Gill

 

Thanks for the reply. There are 3 children total, one is still in the uk and would never emigrate. So 2 of 3 are here. So that looks like the BOF is not met if I'm only on a 457. We were going to wait till I got PR for my parents to apply and I started doing the application for skilled migrant PR when I got here to try and speed things up. But then my sister in Perth spoke to the PVC there and they said as she had citizenship, and she sponsored my parents it would be fine to apply straight away as I only needed to be permanent with a small P. They said I just needed to prove I was settled and in a permanent job, have a car loan and a long lease would be sufficient. I therefore stopped doing the skilled migrant visa and have just been waiting for the 2 years and 1day time limit to apply for PR. if we'd known the advice was wrong I would have got the skilled visa by now. As it stands I'm not sure it's going to be quicker to wait till September when I can apply anyway.

 

As the PVC gave us wrong advice, is there anyway to at least get the lost fees refunded? I'm assuming from your reply there's nothing we can do on appeal.

 

My parents are now looking at selling up and spending 12 months at a time here on a tourist visa until they can apply and get their permanent visa. I've told Mum to hold off doing anything drastic for a bit as I don't want them to get it wrong and waste time and money again. Mum is desperate to get here ASAP as she's already 72 (Dad is only 66) and feels she's missing out on my nephew growing up.

 

Thanks

Michelle

Edited April 4, 2012 by Thorpe1
typo

[Guest Mitchell]

Thanks for that Karen. Definitely something to bear in mind. I want to make sure that whatever happens next we don't make things worse!

[Gollywobbler]

Hi Gill

 

Thanks for the reply. There are 3 children total, one is still in the uk and would never emigrate. So 2 of 3 are here. So that looks like the BOF is not met if I'm only on a 457. We were going to wait till I got PR for my parents to apply and I started doing the application for skilled migrant PR when I got here to try and speed things up. But then my sister in Perth spoke to the PVC there and they said as she had citizenship, and she sponsored my parents it would be fine to apply straight away as I only needed to be permanent with a small P. They said I just needed to prove I was settled and in a permanent job, have a car loan and a long lease would be sufficient. I therefore stopped doing the skilled migrant visa and have just been waiting for the 2 years and 1day time limit to apply for PR. if we'd known the advice was wrong I would have got the skilled visa by now. As it stands I'm not sure it's going to be quicker to wait till September when I can apply anyway.

 

As the PVC gave us wrong advice, is there anyway to at least get the lost fees refunded? I'm assuming from your reply there's nothing we can do on appeal.

 

My parents are now looking at selling up and spending 12 months at a time here on a tourist visa until they can apply and get their permanent visa. I've told Mum to hold off doing anything drastic for a bit as I don't want them to get it wrong and waste time and money again. Mum is desperate to get here ASAP as she's already 72 (Dad is only 66) and feels she's missing out on my nephew growing up.

 

Thanks

Michelle

 

Hi Michelle

 

Thanks for your reply. You have described what I call, "the Child 3 Problem."

 

In what way did your sister "speak" to the Parents Visa Centre, please? Did she just telephone them or did she get them to confirm in writing that it would be OK for your Parents to make an immediate application for a CPV at the time when they did? This is crucial because if she got the reply in writing or by e-mail then there may be scope for an appeal to the Migration Review Tribunal but if she only telephoned the PVC then it is unlikely that they have kept a record of the conversation.

 

Also, exactly when was the CPV application lodged, please? Your family would have received a formal acknowledgement letter from the PVC which states the date upon which the application has been officially lodged into DIAC's visa processing system. What is that date, please?

 

Thirdly, at the time when you submitted the CPV application, did your sister or your Parents include a covering letter in which she or they referred specifically to the advice that your sister had received from the PVC, please?

 

I suspect that what has happened is that at the time when your sister communicated with the PVC, the PVC person gave advice which, arguably, was not incorrect at the time. However, since then DIAC have tightened up on "the Child 3 Problem" and they made an announcement about it in about June 2011, I think (from memory.) In effect, DIAC clobberered the possibility of arguing that Child 3 is "lawfully and permanently resident in Australia" even though Child 3 was not a Permanent Resident of Australia at the time when the CPV application was lodged.

 

So it sounds like the person at the PVC gave you sister advice that the PVC person believed was correct at the time but that DIAC's Powers That Be then rendered the original advice incorrect at a later date. Your Parents seem to have been caught out by this later change in the Law.

 

GASP! I appreciate that the above will seem like double dutch to you so I will now try to explain the background in my subsequent answer to you. I'm feeling twitchy today because I lost my first attempt to reply to you after clicking the wrong bluddy button on my machine, so I now want to post my reply in bite-sized chunks to make sure that I can't lose it again!

 

Cheers

 

Gill

[Gollywobbler]

Hi again, Michelle

 

Parent migration (particularly the Balance of Family Test) is a subject that is very dear to my heart because my mother had hassle because of the Balance of Family Test between 1993 and 2005, when DIAC finally conceded that my mother's step-daughter would not be counted against Mum for the purpose of the BoF Test. I applied for a CPV 143 for Mum before DIAC could have a chance to change their minds about that, and Mum's CPV 143 was granted in 2006.

 

Perhaps the important thing is that I happen to be a solicitor in E&W, so I had realised the crucial importance of getting the Parents Visa Centre to concede our own point in writing before I submitted Mum's CPV application. At the time, the DIAC website contained conflicting advice about "the step-child issue" and the same conflict was revealed in the legislation itself so I was not prepared to take any chances!

 

The chap from the PVC who replied to my e-mail suggested that I should print his & my exchange of e-mails and include it with Mum's CPV application so that, he said, the Case Officer dealing with the application would not be "confused" at a later date! (I was so suspicious that I would have included the e-mail exchange anyway but it was nice of the PVC man to prompt me, all the same!)

 

However, that is just background which is not relevant to your own family's problem right now. I've mentioned it solely so that you understand why I am particularly interested in your own problem. I will deal with your own family's problem in my third reply to you this morning.

 

Cheers

 

Gill

Edited April 4, 2012 by Gollywobbler

[Guest katsmajic]

Gill is the Oracle on CPV, regarding advice etc youre in good hands.

[Gollywobbler]

Hi again, Michelle

 

I first heard about the Child 3 problem in 2008, when I was moderating another forum and Alan Collett of Go Matilda, who is a Registered Migration Agent, started a thread describing a new News article that he had just published on the Go Matilda website. The article is below:

 

http://www.gomatilda.com/news/article.cfm?articleid=451

 

I pricked up my ears because I had not come across the Child 3 problem before then. Another Registered Migration Agent called Tony Coates, who now works for ISCAH in Perth, joined the thread in which I was busy questioning poor old Alan Collett! Tony's details are below:

 

https://www.mara.gov.au/agent/ARDetails.aspx?ud=5458&FolderID=394

 

It transpired that the Child 3 problem comes about when Child 3 is "lawfully" resident in Australia and intends to remain in Australia "permanently." One of Alan's clients (whom I happened to know anyway, separately from Alan, told me that she was the Child 3 described in Alan's artlcle and filled me in on the details! Alan himself wouldn't dream of gossiping about a client's private affairs, obviously.)

 

In the case that Alan described in his article, Child 3 was a lady who was in Australia as the holder of a subclass 475 Provisional Visa. Please note that this is NOT the same animal as the subclass 457 Temporary Visa that you hold. The sc 475 is specifically called a "Provisional" visa because both the Government and the visa holder intend that the sc 475 holder will become a Permanent Resident of Australia in due course. In that specific scenario, DIAC had conceded to Alan that Child 3 was "lawfully and permanently resident in Australia" so Child 3's Parents had been able to submit their own application for a CPV.

 

I questioned Alan and Tony some more! (Never let it be said that I am not thorough about these things!)

 

I asked Tony, "How far can this concession be stretched? What about a situation where Child 3 holds a subclass 457 Temporary Visa? Child 3 is also in Australia "lawfully" and Child 3 also intends to remain in Australia "permanently," after all, even though Child 3 is not a Permanent Resident of Australia as yet?"

 

Tony demurred. He reckoned it would depend on the exact facts of the case. I told him:

 

For example, Child 3 has a sc 457 visa but Child 3 has also lodged a valid application for a PR visa. That might be an application for one of the GSM visas or it might be an application for an ENS or RSMS visa. It is the end of May and everyone knows that the CPV fees will be increased on 1st July. Child 3's application for a PR visa could be processed and granted tomorrow if the Minister got his finger out under S65 of the Migration Act, after all. Is it fair to make Child 3's Parents continue to wait until after 1st July just because the Minister is slow about processing Child 3's application for a PR visa?

 

Tony said that, in the hypothetical situation that I had described, he thought there might be scope to argue with DIAC but he stressed that nothing would be certain unless and until the Fat Lady (ie DIAC) Sang, as they say!

 

Tony is a very good RMA. He worked for DIAC in Perth for several years from about 1986 till about 1995, I believe, when he came back to the UK for several years but he is now back in Perth. He has always been interested in obscure points of Law which most of his competitors seem to have ignored. (We were given inaccurate advice about my mother's legal position by several RMAs in 2005 so I speak with feeling about this! It was not until I got the situation by the scruff of its neck and contacted the Parents Visa Centre myself that we were finally able to obtain accurate legal advice about the workings of the BoF Test in relation to Mum. I didn't know Tony Coates at the time but it later turned out that he was also the only RMA who had understood the whole thing about the step-child issue before I started to make a fuss about it on the internet forums. So I set great store by Tony Coates with these obscure, academic questions of Law.)

 

In your own family's situation, it does sound to me like the person at the PVC gave your sister advice that seemed to him/her to be correct at the time but which was later blocked by DIAC (which I am fairly sure happened in about June 2011.)

 

Therefore if your sister obtained this advice in writing, there might be scope for a possible appeal to the Migration Review Tribunal. The MRT tends to consider Law and Policy as they were at the time of the original visa application, not as they are later on. For your Parents, it is especially important to decide whether or not to appeal to the MRT because the 2nd Instalment for CPVs is due to rise by 5.5% on 1st July 2012, according to the Australian Government Actuary, who calculates what the 2nd Instalment should be with effect from the begining of the next Financial Year, which falls on 1st July 2012. The AGA publishes a document called the Composite Index, the link for which is below. Alan Collett might be able to understand the details of the annual Composite Index because Alan is also a Chartered Accountant. I can't understand the detailed hieroglyphics but I can understand the AGA's recommendation of a 5.5% increase!

 

http://www.aga.gov.au/publications/calc_of_contributory_2012-13/default.asp

 

Clearly, if we can sort your Parents' situation out via an Appeal to the Migration Review Tribunal, ultimately it may be cheaper than just making another application for a CPV at some future time because you do not have Permanent Residency yet and any second CPV application would be caught by the fact that DIAC have now blocked the Child 3 loophole.

 

Has your Parents application for a CPV actually been formally refused as yet or are the PVC merely saying that it looks like they will have to refuse it, please? Again, this is important because I believe that your family would have 70 days in which to lodge an Appeal with the MRT but time does not start to run until DIAC has formally refused the visa. If it has been refused, what was the date of the refusal, please? How much time do we have left before a decision about whether to appeal to the MRT has to be made?

 

If your sister did not get anything in writing then your Parents' situation is not as strong as it otherwise might be but the absence of anything in writing is not necessarily fatal. The MRT will hear oral evidence and it is also sometimes possible to use the Freedom of Information Act in order to demonstrate to the MRT that the PVC person's oral advice to your sister would have been correct at the time when it was given to her.

 

Lodging an appeal to the MRT costs about $1,500 for the MRT's fees but you get that back if the MRT overturn DIAC's decision to refuse the Contributory Parent visa. It is not essential to instruct a solicitor or an RMA to handle an MRT appeal for you. Plenty of MRT applicants handle their appeals on their own. However if you did decide to invest in the services of a solicitor or RMA, his/her professional fees would be added to the costs and you would not get those costs back even if you won at the MRT.

 

Not many RMAs would agree to get involved with an MRT appeal on the facts that you have described so far. They would tend to assume that it is all too difficult and too uncertain about whether they could secure a success, I strongly suspect. Then again, if this situation involved my own mother, there is only one person in the whole of Australia whom I would entrust with the job. That person is a solicitor called Nigel Dobbie, based in Sydney:

 

http://ddilawyers.com/directors_profiles.php

 

Nigel is an Accredited Specialist in Immigration Law (there are only about 70 Accredited Specialists in this field in Oz,) He teaches parts of the course to people who want to become Registered Migration Agents. Bluntly, Nigel has a better set of balls on him than have most of the RMAs I have come across in my time and also Nigel does not charge stupidly high rates for his own, undoubted, genuine expertise in this field of Law.

 

Trust me, I searched Australia thoroughly with my mother's application for a CPV, just in case we ran into any problems with it for any reason.

 

I contacted Nigel Dobbie and found him to be the bees knees. He was lovely. He understood exactly what I was worried about without being told twice. He agreed that I would be able to handle Mum's CPV application by myself unless it went wrong but he also understood that if it did go wrong then I would want properly professional help from him the very same day! He agreed to be on standby for me, just in case... I found that tremendously reassuring because I was not prepared to permit anybody to hijack my mother from me unless I was convinced that it would be the best thing for her and blah blah. They always say that doctors make the worst patients. Solicitors make the worst clients, as well!

 

In the end, there wasn't a problem with my mother's CPV but one can never be too careful, I always think.

 

I think it is too soon to wind you and your Parents up about the MRT and/or consulting Nigel Dobbie. We can probably assess the likely strength of the evidence by ourselves (free of charge) at this stage.

 

What does it all look like to you, please?

 

For the minute, my advice to your Mum would be, "Please just hang on for a while. Do nothing for the time being until Michelle and I have gotten to the bottom of the present problem in more detail. That will only take one or two weeks at the outside so please just sit tight and do nothing at present."

 

Cheers

 

Gill

Edited April 4, 2012 by Gollywobbler
typos

[Guest Mitchell]

Hi Gill

 

Wow, a great and knowledgable answer as always

I spoke to my sister last night and the advice was by phone. Clearly we will have to learn our lesson on this and make sure that any future advice we will make sure we get in writing. Not sure if the visa is officially refused yet as Mum just mentioned an email. I'll check and see and post again.

 

thanks so much

Michelle

[Gollywobbler]

Hi Gill

 

Wow, a great and knowledgable answer as always

I spoke to my sister last night and the advice was by phone. Clearly we will have to learn our lesson on this and make sure that any future advice we will make sure we get in writing. Not sure if the visa is officially refused yet as Mum just mentioned an email. I'll check and see and post again.

 

thanks so much

Michelle

 

Hi Michelle

 

Thanks for this reply.

 

If the advice was given over the phone and there was no covering letter with the CPV application, referring to the specific telephone advice, that is not wonderful but it is not necessarily fatal. If the visa has not yet been refused formally then there might be some scope to argue.

 

Please question your Mum in more detail. If the visa has been refused, DIAC send a formal letter confirming that it has been refused and there is also a separate sheet of paper headed "Reasons for Refusal" or something similar. The reasons for refusal are usually unintelligible because they refer to obscure sections of the Migration Act that most people have never even heard of, let alone read! For those, one needs someone like Nigel Dobbie who has actually read and understood every word of the relevant legislation.

 

A formal refusal letter would also mutter about the possibility of an apeal to the MRT. They usually put a paragraph that is little more than a PS about the MRT but it gives the link to the MRT website, I believe.

 

DIAC occasionally refuse a visa outright with no prior warning but much more frequently they write and tell the applicant that they think they will have to refuse the visa and they give the applicant 28 days in which to offer the applicant's comments about the intended refusal. If your Parents' application has only got as far as this warning stage then it would be worth contacting the Manager of the PVC (don't worry - I have all his direct contact details and will gladly pass those on privately) just to see whether we can rescue the application.

 

By convention, the names of individual DIAC staff and their contact details are not bandied around publicly on the internet forums because that would not be fair on the individual staff members in most situations. (Occasionally they deserve it, in which case I do not spare them, but mostly they don't deserve any publicity!)

 

If the visa has actually been refused formally, the probability is that DIAC would not agree to vacate their own refusal. I have known situations where someone has been able to wheedle them into vacating their own refusal but the legislation doesn't actually contain the legal machinery to allow them to do it. The legislation assumes that the Minister will never make a legal mistake and that he will never call the shot wrongly where a Manager has to make a value-judgement about something. Which is a very big ask but Parliaments always imagine that their fellow-pollies are infaiiible! The Minister for Immigration is only an elected politician, after all, and the Immigration Portfolio annoys every single voter in Australia for one reason or another, so the pollie who gets the job of being the Minister for Immi has drawn one of the shorter straws in the box!

 

Also, if the Minister makes a mistake (or his delegates do) Parliament comfort themselves with the thought that the visa applicant can always Appeal to one of the Tribunals or s/he can apply to the Court for Judicial Review of the decision. It is nice being a politician, I reckon - the real world need never impinge on one's dreamy imaginings and as for hassle and cost, that's what other people are supposed to enjoy putting up with, isn't it?

 

Also, if a visa has been formally refused and then the refusal is vacated in-house, the relevant Manager runs the risk that DIAC's internal Auditors will start asking questions. Two years later, when nobody can still remember what actually happened or why. So I can understand the Managers' reluctance to overturn formal visa refusals.

 

So - if the visa has not been formally refused, I think there is definitely enough meat on the bone to make it worth arguing with the Nanager of the PVC. After all, the worst he can do is to refuse the visa formally and he is going to do that anyway unless one puts up a fight, so I would consider it worth having a go at him.

 

That said, if the visa has been refused formally then it is probable that no amount of trying to bicker with the Manager of the PVC would alter the position. In that situation, I think the decision would be whether or not to launch an Appeal to the MRT.

 

Based solely on my entirely informal discussions with Tony Coates about Child 3, I don't think it looks brilliant. I suspect that when Child 3 holds a sc 457 Temporary Visa, there would probably need to be some convincing evidence that Child 3 has actually applied for PR - which does not seem to have been the case.

 

However, I will send you a Private Message with my e-mail address. I am in touch with both Tony Coates and Nigel Dobbie, so between us we would be able to scrounge from free initial advice out of one or both of them. E-mail is the easiest medium at this stage since neither Nigel or Tony are members of Poms in Adelaide.

 

I think it is important to reassure your Parents that all is not necessarily lost at this stage. They should be aware that it does not look brilliant but it might not be totally hopeless. Long stay tourist visas can now be obtained on-line so that could be done within an hour or two, ergo there is no hurry to make any decisions about that and it would not be wise to do it prematurely. Karen Thorpe has hinted that there might be better ways to do this and she is right.

 

Please just ask Mum to stay calm, do nothing and just answer a few more questions for the time being.

 

Cheers

 

Gill

[Guest Missymoo3]

Hi Gill

 

Wow, a great and knowledgable answer as always

I spoke to my sister last night and the advice was by phone. Clearly we will have to learn our lesson on this and make sure that any future advice we will make sure we get in writing. Not sure if the visa is officially refused yet as Mum just mentioned an email. I'll check and see and post again.

 

thanks so much

Michelle

 

 

I second that about getting any advise in writing. We applied for the CPV in June after so many phone calls to immi to seek advise. We were advised that even though I haven't been a PR for 2 years (previously a WHV & RSMS) we could still apply, I was told along as I'd had PR for at least 1 day out of my time here we could apply. I also got told even though we haven't been he for 2 years we could apply 10 weeks early but to add a letter and proof stating why I feel I am 'settled'. But after lodging the visa and paying the fee we got a very rude email from the case officer saying she will not except it, even though in the booklet it clearly states temporary residence can be considered and 2 years is used as a guideline.

 

My poor parents originally applied for a business class visa and after 27 months of processing and £14,000 it was cancelled due to them not being able to pay the $750,000 bonds within the 28 days given. They were wrongly advised by their migration agent that they had up to 12 months to pay the bonds when the visa is grant.

 

We are going to relodge the CPV next month as we were advised by the case officer via email our visa application would be considered after the 20th September. So I'm keeping everything crossed !!

 

Hope you have better luck next year too!

[Gollywobbler]

Hi Missymoo

 

I suspect that you and I have come across the same woman at the PVC recently.

 

Some friends of mine applied for a CPV for their mother/mother in law. The lady's daughter had been resident in Australia for 18 months and she had been a Permanent Resident for 12 months. From the facts, the daughter's lifestyle is as "settled" as it is ever going to become.

 

However, a woman at the PVC quoted the Policy documents, interpreted Policy's meaning incorrectly, refused to discuss the question of whether or not she thinks the relevant facts add up to the idea that the daughter was "settled", she also refused to accept that Policy is not Law and she decided to ignore Naiker v MIMIA - only the leading case on the subject and absolutely binding on the Government unless either Naiker is overruled by a higher court or Parliament alters the relevant statute law. Naiker, said the PVC female, is old law (the case was about 10 years ago, I think.) She reckons that "old" case law can be - and has been - overruled by her own modern obsession with misinterpreting Policy instead.

 

I'm a lawyer in England & Wales. Australian Federal Law does have a few features that are not found in English law but the way that case-law works, and the legal effect that it has, is very similar if not identical. I even e-mailed Nigel Dobbie, just to check that my own interpretion is water-tight, technically:

 

http://www.ddilawyers.com/directors_profiles.php

 

Nigel confirmed that the question of whether or not the prospective sponsor is "settled" is a question of fact and nothing else. The CPV applicant's son-in-law e-mailed the woman at the PVC but she wouldn't budge. I then e-mailed her myself, explaining exactly what I think the relevant Law is, why I think what I believe and blah blah. She told the son-in-law that she is entitled to dismiss my own contentions because they differ from her own interpretation of the Policy-cum-Law as she believes it to be.

 

The only way to deal with the Gordian Knot is to cut it, as Damocles discovered thousands of years ago. The only way to cut this particular Gordian Knot would be if the family instructed Nigel Dobbie formally and sent him in to bat against DIAC. The son-in-law and I had both given it our own very best shots but Nigel is one of the biggest guns that there is in Australian Immigration law so he might succeed where we had failed, I felt.

 

However, the family decided not to instruct a lawyer. They allowed the female from the PVC to bully them into withdrawing the CPV application instead. This, of course, will merely reinforce the bully's inaccurate conviction that she is correct, which will just cause unnecessary problems for other CPV applicants in the future but there is nothing I can do about that.

 

The PVC's conduct was disgraceful, in my opinion. The bullying clerk said that the Manager of the PVC was on holiday at the time but refused to divulge any further details about the Manager than that. If it had been up to me, there would have been the mother & father of a battle with DIAC about this, conducted by Nigel Dobbie. I think it is very bad to give in about something like this because it hurts people who come afterwards.

 

However, there was nothing I could do but I'll bet anything that you and I are describing the same female at the PVC.

 

Cheers

 

Gill

Edited September 14, 2012 by Gollywobbler